EC disqualifies 20 AAP MLAs: All you need to know about 'Office of Profit'

In a big setback for the Aam Aadmi Party (AAP), the Election Commission on Friday disqualified 20 of its MLAs for holding 'office of profit'. The Congress had on June 9, 2016, moved the poll panel to seek disqualification of 21 AAP MLAs and has been pursuing the matter ever since. The proceedings were dropped against Jarnail Singh after he resigned as the Rajouri Garden MLA to contest the Punjab Assembly polls in February 2017. In October last year, the EC had issued a notice to the Aam Aadmi Party lawmakers for an explanation.

This is not for the first time in Indian history that action is being taken against lawmakers. Several lawmakers have faced disqualification for holding 'office of profit'.

The idea behind the concept of office of profit – which evolved in England – is to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties. It refers to a post under central/state government which yields salaries, perks and other benefits. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive – a basic feature of the Constitution.

The term office of profit has not been defined in the Constitution. But, articles 102 (1) and 191 (1) – which give effect to the concept of office of profit -- prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.

Part I and Part II of the Schedule to the Parliament (Prevention of Disqualification) Act contain lists of bodies, the holder of which would result in disqualification.

Ministers exempted

However, articles 102 and 191 clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.

Further, the last part of the two provisions protects a lawmaker holding a government position if the office has been made immune to disqualification by law.

BJP, Congress equally guilty

Even as EC disqualified 20 Aam Aadmi Party (AAP) MLAs for holding 'office of profit', the issue first shot to national prominence in 2006 when the BJP demanded Congress president Sonia Gandhi’s disqualification from the Lok Sabha for holding the position of chairperson of the National Advisory Council (NAC). Gandhi had then resigned from her Lok Sabha seat. She contested the by-poll from Amethi to be re-elected later. In another precedent, the Supreme Court disqualified Samajwadi Party MP Jaya Bachchan in 2004 for holding on to the post of Uttar Pradesh Film Development Council’s chairperson – a job that the SC deemed to be an ‘office of profit’.

The record of the BJP, which has launched the most vocal attack against AAP, is no better. Rajasthan chief minister Vasundhara Raje Scindia appointed eight parliamentary secretaries between 2002-2008. In her latest term, she has appointed five MLAs to the same office. Similar favours were extended to many legislators in Punjab, Goa, Haryana, and Gujarat, where the BJP is ruling.

Disqualification in India and England: A Comparison

In England, there is no general theory that a disqualification arises from holding an office of profit under the Crown. There, disqualifications are specific and disqualification arises only when a person holds a disqualifying office so declared under a parliamentary legislation. The position is, however, different in India as there prevails a general disqualification under the Constitution, but specific exemptions may be granted from it under a law of Parliament.